Re Robertson, J.W. v Ex parte Briggs, N.P
[1995] FCA 371
•5 Jun 1995
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
No. QP 143 of 1995
BANKRUPTCY DISTRICT OF THE )
STATE OF QUEENSLAND )
RE:JOHN WILLIAM ROBERTSON
Debtor
EX PARTE:NOEL PATRICK BRIGGS
Creditor
MINUTES OF ORDER
JUDGE MAKING ORDER: Spender J
DATE OF ORDER: 5 June 1995
WHERE MADE: Brisbane
THE COURT ORDERS THAT:
The creditor's petition is adjourned until 9.30 am on 20 June 1995.
The costs of today are reserved.
NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
No. QP 143 of 1995
BANKRUPTCY DISTRICT OF THE )
STATE OF QUEENSLAND )
RE:JOHN WILLIAM ROBERTSON
Debtor
EX PARTE:NOEL PATRICK BRIGGS
Creditor
CORAM: Spender J
DATE: 5 June 1995
PLACE: Brisbane
REASONS FOR JUDGMENT
This creditor's petition raises questions which are different from those which are normally encountered in the bankruptcy jurisdiction. I should say at the outset that the matters which Mr Robertson has raised and pursued, leading to the present application in the Federal Court exercising bankruptcy jurisdiction, are matters which may in fact have created a life of their own, and have the potential down the track, if not already, to cause serious financial difficulties. It is unnecessary to elaborate further on that aspect of the matter, because Mr Robertson is equally conscious of those considerations.
What happened in relation to all this is as follows. On 25 March 1994, Mr Robertson was responsible for an Originating Summons being issued for an order that all the candidates known as the Cairns Unity Team and all those candidates known as the Alliance Team, and Sno Bonneau be disqualified from the local government election for the Cairns City Council which
was, at the time the summons was taken out, yet to be held. It was to be held on 26 March 1994. Mr Robertson was a candidate in the election.
The matter first came before the Supreme Court of Queensland before Mackenzie J, on 11 April 1994. On that day, his Honour directed Mr Robertson to further particularise his claim. From the heading on the documents and from the subsequent material filed, the complaint, according to his Honour, revolved around an allegation that an opportunity given to the electors of Cairns by the Cairns Post to telephone a 0055 number to record their preference for Mayor was distorted by supporters of candidates other than Mr Robertson telephoning more than once.
The results of the telephone poll were published in the Cairns Post on Monday 21 March, and in those figures Mr Robertson came a distant last.
For reasons which were given on 29 April 1994, his Honour held that the application failed, and he ordered that the Summons be dismissed with costs to be taxed. The taxing officer of the Supreme Court of Queensland in the Cairns District Registry taxed the costs of Noel Patrick Briggs, a respondent to the summons, on a party and party basis, and certified that the costs were allowed in the sum of $3058.05.
The application by Mr Robertson concerned certain provisions of the Local Government Act 1993, in particular, s. 336 of that Act. For the reasons which his Honour gave, he concluded that, the election having been declared, an application under the Administrative Decisions (Judicial Review) Act 1977 would be the appropriate procedure but that, before any application under that Act could be successful, grounds recognised by the Local Government Act as ones causing a councillor to be disqualified or to render his election unlawful would have to be proved.
Noel Patrick Briggs, the petitioning creditor, was the returning officer at that Cairns Council election in March 1994. As far as the material shows, he was the returning officer as a consequence of his being the Chief Executive Officer of the Cairns Council. The transcript before Mackenzie J indicates that he was not a nominal respondent. Mr Robertson made personal allegations of default against him, as appears from the transcript of the proceedings and, in particular, from page 14 line 15, to page 15 line 15.
In an affidavit by Mr Briggs filed on 19 April 1995, Mr Briggs said that Mr Robertson is truly and justly indebted to him in the sum of $3058.05. In that affidavit he says:
"On December 1st, 1994 I obtained a Certificate of Taxation in relation to my party and party costs pursuant to the order. "
Exhibited to his affidavit, was a true copy of the Certificate of Taxation. He then says:
"On December 1st, 1994 a copy of the Certificate of Taxation was served upon the Debtor together with a written demand requiring the Debtor to pay the costs by no later than January 3rd, 1995. Despite demand, that the debtor has neglected to pay the debt. During the elections for the Cairns City Council on March 26th 1994, I held the position of Returning Officer by virtue of my position as Chief Executive Officer of the Cairns City Council. "
There is no dispute that the sum of $3058.05, or any other sum, has not been paid by Mr Robertson to Mr Briggs, or to anybody else, in respect of the order for costs made by Mackenzie J on 29 April 1994.
An appeal by Mr Robertson from the judgment of Mackenzie J was unsuccessful in the Court of Appeal. It appears from affidavit material filed by Mr Robertson that in the Court of Appeal proceedings he made allegations of champerty concerning the position of Mr Briggs in the litigation before Mackenzie J. That allegation is central to his present submissions. His claim is essentially that Mr Briggs should have personally written the letter of demand, and should personally have made the demand. His contention is that Mr Briggs, in fact, had not incurred any party and party costs, was not liable for them, and that, in fact, Mr Briggs was a nominal representative for Mr Robertson's political opponents.
On March 17, 1995 a letter was written to the Superintendent of the Australian Federal Police by Mr Robertson. The reply by the Australian Federal Police is dated 7 April 1995. Mr Robertson, in his letter, says:
"I have two matters to report:-
(a)using telephone equipment to breach the Local Government Act
(b)champerty.
Champerty is not a well known term; so that we start on common ground the following is "the International Webster New Encyclopaedic Dictionary" definition: Law; an illegal proceeding whereby a party not otherwise concerned in a suit aids a plaintiff or defendant in consideration of a share of any proceeds of the litigation in case of success. "
He referred to the bankruptcy material and noted that Mr Briggs is the petitioning creditor, that MacDonnells and Clayton Utz are the solicitors and Gerald Anakin, the City Solicitor, is also involved. In that letter he said:
"From the proceedings in the Supreme Court I learned that Noel Briggs was aided in those proceedings by people who opposed me in the 1994 and 1995 Local Government Elections for council, but who are not parties in those Supreme Court proceedings. The consideration they received by maintaining Noel Briggs was to remain as Councillors from April 11 1994 until next week. The champertors are... "
And he then names a number of persons, including Mr Kevin Byrne. The letter later said:
"Please investigate and ascertain what money Noel Briggs has paid towards the following matters:- Supreme/High Court, Robertson -v- Briggs, Magistrates Court, Briggs -v- Robertson, Federal Court, Briggs -v- Robertson. I suspect that Briggs has paid nothing at all and if he claims he has, I would like to see verification of the amounts paid and when the payments were paid. "
It seems to me, if I may say so with respect, that Mr Robertson has an imperfect understanding of what precisely champerty involves. It is clear that he chose to bring proceedings against Mr Briggs and that Mr Briggs was the
respondent to the proceedings by virtue of his position as Returning Officer. True it is that as Returning Officer he owes an independent duty to all the parties concerned in the election, including Mr Robertson, but that does not mean that if it be the case that the Cairns City Council was standing behind him in terms of costs, that that conduct by the Cairns City Council was necessarily champertous.
Even if that was the case, the presence of champerty does not, in my view, annihilate the existence of the debt. That is the central question with which these bankruptcy proceedings are concerned. The Court of Appeal dismissed Mr Robertson's appeal against the orders of Mackenzie J, and an application for special leave to appeal to the High Court, which was heard on 30 May 1995, was unsuccessful. As is the usual case when dealing with questions of special leave, the High Court did not give extensive reasons. The judgment of the High Court in refusing leave simply stated:
"This application for special leave to appeal from a judgment of the Queensland Court of Appeal was considered by the Chief Justice, Deane and McHugh JJ. The court is of the opinion that the decision of the Court of Appeal is clearly right. The application for special leave to appeal is dismissed. "
All of this persuades me that there is a debt in existence in the sum of $3058.05 owing by the debtor to the petitioning creditor. The other matters which Mr Robertson has sought to agitate do not alter that fact. It therefore follows, in my opinion, that subject to some short matters to
which I will refer, the court is empowered to make a sequestration order.
Mr Robertson, in an affidavit filed on 2 May 1995, says, in paragraph 5, that:
"...the Petitioning Creditor has never made a written demand of any sort upon me and accordingly it is impossible for me to have neglected to pay him. "
I have already referred to the circumstances in which the debt arose and to the written notice communicated to the debtor. In that affidavit, Mr Robertson says, in paragraph 14:
"I apply for this matter:-
(a)to be dismissed, pursuant to the facts set out in paragraph 5,
OR (b)to be set aside until two weeks after the High Court has fully disposed of the relevant matter before it,
PARTICULARLY as:-
(c)the Petitioning Creditor paid no legal costs whatsoever; there were no legal costs (apart from my Originating Summons filing costs) until Anakin, working for the Champertors, conspired with the Petitioning Creditor on April 11th 1994 to allow Anakin to appear in Court to prevent the Champertors from being disqualified from the election, leaving me as Mayor of Cairns,
(d)the new 1995 Pyne City of Cairns Council are now Champertors conspiring with the Petitioning Creditor to bankrupt their political opponent, me. "
I have already said what I want to say concerning the subject of champerty, but there is one outstanding matter of a
technical kind. In this case the affidavit verifying the petition was sworn and the petition was signed, the day before the act of bankruptcy alleged in the petition was committed. The presentation of the petition was not made before an act of bankruptcy was committed by Mr Robertson. The question then arises whether there was "substantial injustice" caused to Mr Robertson by the defect or irregularity within the meaning of s. 306 of the Bankruptcy Act 1966.
There are other matters, to which Mr Robertson has referred, which I should note. In an affidavit filed this morning by leave, Mr Briggs gives his address at 151 Abbott Street, Cairns. That is the address of Cairns City Council, and Mr Robertson from the bar table says that Briggs is no longer in the employ of the Council and that that address is erroneous. More importantly, the jurat of that affidavit says that it was sworn by the abovenamed deponent the fifth day of June 1995 at Cairns, yet a facsimile of that document tendered by Miss Williams, who appeared for the petitioning creditor, indicates that it was sent by facsimile transmission from MacDonnells, Solicitors, on 2 June 1995, at 5.07 pm.
The date is clearly wrong. Neither of the matters concerning the date or the address, in my opinion, undermine what is said by Mr Briggs in the affidavit.
As to the circumstance that the affidavit verifying the petition was sworn and the petition signed, a day before the act of bankruptcy, in my opinion, that circumstance is a "defect" or "irregularity" within the meaning of s. 306 of the Bankruptcy Act.
I am satisfied that no substantial injustice has been caused to the debtor by the defect or irregularity. Section 306(1) provides:
"Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the justice cannot be remedied by an order of that court. "
The facts in this case are on all fours with those leading to a similar conclusion by Farwell and Clauson JJ in In re A Debtor; The Debtor v Petitioning Creditor and Official Receiver, ex parte [1933] L.J. Ch. 143. The position again is the same as in Re Moore; Ex parte MGICA Ltd (1986) 11 FCR 400, a judgment of Muirhead J. In this case, as in that case, supplemental affidavits have been filed and served and the debt has not been paid, and his Honour concluded, as I did, that no substantial injustice to the debtor was shown.
Those two cases and the present are to be contrasted with the facts in Re Egar; Ex parte K.R. & J. Secombe Pty Ltd (1986) 68 ALR 509, a judgment of Beaumont J. There the petition was lodged for filing one day before the act of bankruptcy relied on was committed. His Honour concluded that it was a condition of presentation of a bankruptcy petition
that the act of bankruptcy relied on was committed before the presentation of the petition, that such a defect was not formal nor merely an irregularity, within the meaning of s. 306(1), and his Honour dismissed the petition. In the present case, the petition was presented after the act of bankruptcy had been committed.
I am conscious of the motivations by Mr Robertson in pursuing the various issues that he has, but the position in the bankruptcy jurisdiction is that there is a debt owing by the debtor to the petitioning creditor that has not been paid.
It is not now open to the debtor to assert any cross-claim which would have the effect of denying to the petitioning creditor the making of any order. However, because of those political factors which have persuaded Mr Robertson to take the course that he has so expensively pursued, I am not minded to make a sequestration order today.
I am satisfied that all of the matters that have to be proved before I should make an order have been established. But what I will do is to adjourn the petition until 9.30 am on Tuesday 20 June 1995. I indicate that if by 4 pm on Friday 16 June 1995, the sum of $3058.05 is not paid to Messrs MacDonnells, solicitors, in Cairns, by Mr Robertson in respect of the judgment debt, the subject of the petition, then I will at 9.30 a.m. on 20 June 1995 proceed to make the sequestration order and the usual order as to costs, including reserved costs. If that sum is paid, then I will consider the question of what costs orders I should make and what I should do in respect of the creditors petition. I adopt this course because of what I see as a mistaken view by Mr Robertson concerning the orders for costs made by Mackenzie J. But the fact is, that debt exists and has been unpaid, and unless and until it is paid, a basis exists for the making of a bankruptcy order against him. Whether in fact I am obliged to take that course, depends on events between now and 9.30 am on 20 June 1995. I will adjourn the creditors petition until then. I reserve today's costs.
I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 5 June 1995
The debtor appeared in person.
Solicitors for the
petitioning creditors : Miss F. Williams of Clayton Utz, town agents for MacDonnells
Date of Hearing : 5 June 1995
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